BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY GREENHAW,
 
         
 
              Claimant,
 
         
 
                               
 
         VS.
 
                                                      File Nos. 866930
 
          HEINZ, U.S.A.,                                        883578
 
          
 
               Employer,                 :         A R B I T R A T I 0 N
 
         
 
          and                            :            D E C I S I 0 N
 
         
 
          LIBERTY MUTUAL INSURANCE CO.,
 
         
 
               Insurance Carrier,
 
               Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              This is a proceeding in arbitration brought by Judy 
 
         Greenhaw, claimant against, Heinz, U.S.A. , employer and Liberty 
 
         Mutual Insurance Company, insurance carrier, defendants, for 
 
         benefits as the result of a fall injury which occurred on August 
 
         18, 1987 and an alleged overuse injury which occurred on 
 
         September 21, 1987.  A hearing was held on August 15, 1989, at 
 
         Davenport, Iowa, and the case was fully submitted at the close of 
 
         the hearing.  Claimant was represented by Michael W. Liebbe.  
 
         Defendants were represented by Greg A. Egbers.  The record 
 
         consists of the testimony of Judy Greenhaw, claimant; Barbara' 
 
         Garrison, claimant's sister; Mary Kuhl, nursing supervisor; joint 
 
         exhibits 1 through 42 and defendants' exhibits A through C.  The 
 
         deputy ordered a transcript of the hearing.  Both attorneys 
 
         submitted excellent posthearing briefs.
 
         
 
                          FALL INJURY OF AUGUST 18, 1987
 
         
 
                                  STIPULATIONS,
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
              That claimant sustained an injury on August 18, 1987 which 
 
         arose out of and in the course of employment with employer.
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 2
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That the injury was the cause of temporary disability; that 
 
         claimant was temporarily disabled from August 14, 1987 to 
 
         November 2, 1987; that claimant was paid temporary disability 
 
         benefits for this period of time; and that temporary disability 
 
         benefits are no longer a disputed issue in this case at this 
 
         time.
 
         
 
              That the commencement date for permanent disability 
 
         benefits, in the event such benefits are awarded, is November 2, 
 
         1987.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $227.21.
 
         
 
              That claimant's entitlement to medical benefits is no longer 
 
         in dispute.
 
         
 
              That defendants make no claim for credit for benefits paid 
 
         prior to hearing under an employee nonoccupational group health 
 
         plan.
 
         
 
              That defendants make no claim for workers' compensation 
 
         permanent partial disability benefits paid to claimant prior to 
 
         hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether the fall injury of August 18, 1987, was the cause of 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to permanent disability 
 
         benefits, and if so, the nature and extent of benefits to which 
 
         she is entitled.
 
         
 
                   ALLEGED OVERUSE INJURY OF SEPTEMBER 21, 1987
 
                                        
 
                                   STIPULATIONS
 
         
 
              The parties stipulated to the following matters at the time 
 
         of the hearing:
 
         
 
              That an employer-employee relationship existed between 
 
         claimant and employer at the time of the injury.
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 3
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
              That the time off work for which claimant now seeks 
 
         temporary disability benefits from this alleged injury is from 
 
         March 30, 1988 to July 17, 1988.
 
         
 
              That the rate of compensation, in the event of an award, is 
 
         $227.21 per week.
 
         
 
              That the providers of medical services and supplies would 
 
         testify that the fees charged were reasonable and necessary and 
 
         that the services and supplies were reasonable and necessary 
 
         medical treatment.
 
         
 
              That the causal connection of the medical expenses to 
 
         treatment for a medical condition upon which claimant is now 
 
         basing her claim is admitted, but that the causal connection of 
 
         this treatment to a work injury remains an issue to be decided by 
 
         these proceedings.
 
         
 
              That in the event of an award of benefits to claimant for 
 
         this alleged injury, then the parties would work out an agreement 
 
         for the repayment of $2,470.77 paid to claimant prior to hearing 
 
         under the employee nonoccupational group health plan.  This 
 
         agreement was reached and is explained in a letter dated August 
 
         15, 1989 to the industrial commissioner by Mr. Greg A. Egbers, 
 
         defendants' counsel.  This letter is a part of the industrial 
 
         commissioner's file.
 
         
 
              That defendants make no claim for credit for workers' 
 
         compensation benefits paid to claimant prior to hearing.
 
         
 
              That there are no bifurcated claims.
 
         
 
                                      ISSUES
 
         
 
              The parties submitted the following issues for determination 
 
         at the time of the hearing:
 
         
 
              Whether claimant sustained an injury on September 21, 1987 
 
         which arose out of and in the course of employment with employer.
 
         
 
              Whether the injury was the cause of either temporary or 
 
         permanent disability.
 
         
 
              Whether claimant is entitled to either temporary or 
 
         permanent disability benefits, and if so, the nature and extent 
 
         of benefits to which she is entitled.
 
         
 
              Whether claimant is entitled to medical benefits.
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 4
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
                             SUMMARY OF THE EVIDENCE
 
         
 
              Claimant, born September 17, 1951, was 35 and 36 years old 
 
         at the time of the respective injuries and 37 years old at the 
 
         time of hearing.  She is a high school graduate.  Prior 
 
         employments include working in a nursing home and counting 
 
         coupons, both of which were minimum wage jobs.  Claimant started 
 
         to work for employer on December 4, 1978.  She has worked for 
 
         employer continuously for almost 11 years and continued to work 
 
         for employer at the time of the hearing. she was earning $9.975 
 
         per hour before the injury and was earning $11.47 per hour after 
 
         the injury (exhibit 40; transcript page 45).
 
         
 
              On August 18, 1987, claimant was operating the 32 ounce 
 
         labeler machine which labels ketchup bottles.  She put the labels 
 
         in the machine and the machine put the labels on the bottles.  
 
         She testified that she performed this job for approximately eight 
 
         years and was still performing it at the time of the hearing.  
 
         Employer's description of this job appears in the evidence (ex. 
 
         37, pages 1 & 2).  Claimant testified that the labels come in 
 
         packets of 1,000.  Her job required her to open the packet with a 
 
         knife, take out the labels, remove the paper slivers that 
 
         frequently come in the packages so that they did not jam up the 
 
         machine, and fluff the labels with her hands with a motion that 
 
         involved the opening and closing of both hands.  She then put the 
 
         labels in the machine.
 
         
 
              Claimant testified that she also sometimes worked as a 
 
         retort operator when her seniority permitted it.  Other evidence 
 
         indicated that she sometimes worked as a brite palletizer 
 
         operator.  Various job descriptions appear in the record (ex. 37, 
 
         pp. 1-10).  Claimant further testified that she was required to 
 
         put glue in the glue buckets.  Claimant contended that she was 
 
         required to fluff the labels three times every five minutes and 
 
         that she was required to add glue once every two hours (tr. pp. 
 
         13-22).  Claimant denied that much of her time was spent simply 
 
         standing and watching the machine and only fluffing the labels 
 
         occasionally.  Claimant denied that she only had to add glue two 
 
         times per shift (tr. pp. 40-42).
 
         
 
              On August 18, 1987, claimant was operating the labeler when 
 
         she slipped and fell on her hands and knees and struck her right 
 
         shoulder on the machine in the course of her fall.  She reported 
 
         this to the lead person and to employer's medical department.  
 
         The company nurse gave her a medication called Myopulse.  
 
         Employer sent claimant to see an orthopedic surgeon, William 
 
         Catalona, M.D., on August 27, 1987.
 
         
 
              Claimant testified that she also told Dr. Catalona that she 
 
         had numbness in her hands which had been present for about two 
 
         years and which was waking her up at night before the fall.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 5
 
         
 
         
 
         Claimant testified that an EMG on September 21, 1987 disclosed 
 
         bilateral carpal tunnel, worse on the right than on the left.  
 
         The neurologist who performed the EMG suggested surgery on both 
 
         extremities.  Claimant testified that the fall injured her hands, 
 
         knees and the area in between her shoulder blades (tr. pp. 
 
         22-29).
 
         
 
              Claimant testified that she wanted a second opinion about 
 
         the surgery and was referred to William R. Irey, M.D., another 
 
         orthopedic surgeon.  Dr. Irey took claimant off work from October 
 
         14, 1987 to November 2, 1987.  Claimant said she eventually 
 
         received two carpal tunnel surgeries.  The one on the right was 
 
         performed on March 31, 1988 and the one on the left was performed 
 
         on May 19, 1988 (tr. pp. 28-31).  Claimant has returned to work 
 
         and operates both the labeling machine and the retort machine.  
 
         Claimant maintained that her hands still go numb and tingle.  She 
 
         has pain in between her shoulder blades constantly like a muscle 
 
         spasm pain.  Claimant contended that she is able to work because 
 
         she takes Advil or Nuprin and heats sand up to 180 degrees and 
 
         kneads it with her hands as recommended by Dr. Catalona's 
 
         assistant (tr. pp. 31, 32 & 46).   Claimant testified that she 
 
         cannot manipulate doorknobs, she cannot write or sew for long 
 
         periods of time, and if she does, it causes numbness and tingling 
 
         in her hands and they begin to swell.  Claimant admitted that she 
 
         was not under any medical physical restrictions or limitations.
 
         
 
              Claimant testified that she saw Dr. Catalona and he reduced 
 
         the performance effort on the retort machine from classification 
 
         F to classification D to enable her to perform the job with the 
 
         difficulty in her shoulder (tr. pp. 29-34).  Claimant did 
 
         acknowledge that she works a lot of overtime, some of which is 
 
         involuntary, which occurs when your successor employee does not 
 
         show up for work.  In addition, she testified that she has 
 
         volunteered for a lot of overtime work.
 
         
 
              Defendants counsel showed claimant a letter bearing her 
 
         signature requesting to go back on the brite line.  This letter 
 
         bears notes dated December 8,, 1987 and December 9, 1987, which 
 
         indicated that Dr. Irey had been contacted and claimant was 
 
         released to perform all duties of her original work (ex. 38).  
 
         Claimant was asked to examine another letter bearing her 
 
         signature dated December 10, 1987, requesting 'to be assigned to 
 
         the retort machine.   In this letter she stated, "My shoulder is 
 
         fine ... " (ex. 39).  Claimant acknowledged again that neither 
 
         Dr. Catalona nor Dr. Irey imposed any permanent restrictions on 
 
         her duties at Heinz (tr. p. 51).
 
         
 
              Barbara Garrison,  claimant's sister, a former employee of 
 
         employer, recalled that claimant's physical condition on July 4, 
 
         1987, was good.  She was active.  She had no complaints about her 
 
         shoulder or hands.  She testified claimant has changed
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 6
 
         
 
         
 
         drastically.since the injury.  Formerly, claimant was a 
 
         spontaneous person and would go places with you at the drop of a 
 
         hat.  Now she is a chronic complainer about her physical 
 
         discomfort.  She used to drive on trips, but now steering the car 
 
         makes her hands go numb and she can't do it any longer.  She 
 
         testified claimant does not go shopping like she used to.  
 
         Claimant has gained weight because she is inactive.  She has 
 
         become a whiner (tr. pp. 53-56).  However, she also complained 
 
         after other injuries until she recovered.
 
         
 
              Marcy Kuhl, testified that she is the nursing supervisor for 
 
         employer, beginning her employment on April 1, 1985.  She is a 
 
         registered nurse.  Kuhl supervises employer's first aid 
 
         department.  Kuhl testified that the label operator job is not 
 
         considered to be a repetitive motion type of job.  The witness 
 
         testified that she had not received any restrictions from either 
 
         Dr. Catalona or Dr. Irey for claimant for either one of these 
 
         claimed injuries (tr. pp. 58-65).
 
         
 
              The medical records of two of claimant's personal 
 
         physicians, V. Warren Swayze, M.D., and D. Wettach, M.D., do not 
 
         disclose any shoulder or carpal tunnel complaints prior to these 
 
         injuries (exs. 1 & 2).  Employer's injury, illness and treatment 
 
         record shows left shoulder pain and left wrist discomfort on May 
 
         21, 1985 through May 29, 1985; however, it does not show any 
 
         other treatment from May of 1985 up until the date of the August 
 
         18, 1987 injury.  Dr. Catalona treated claimant in 1978, 1979, 
 
         1984 and 1985, but he did not record any shoulder or wrist 
 
         complaints until his office note on May 23, 1985 (ex. 4, pp. 1 & 
 
         2).
 
         
 
              Dr. Catalona's office notes for these injuries begins on 
 
         August 27, 1987 and ends on September 19, 1989 (ex. 4, pp. 2-4).  
 
         On August 27, 1987, he saw claimant for the fall which occurred 
 
         on August 18, 1987 for injuries to her right scapula, left knee 
 
         and both hands.  He diagnosed a contusion of the right scapular 
 
         area and stated she may have early carpal tunnel syndrome, but he 
 
         doubted if it was related to the fall.  An EMG was ordered and it 
 
         disclosed bilateral carpal tunnel syndrome, worse on the right on 
 
         September 21, 1987.  Dr. Catalona referred claimant to Dr. Irey 
 
         for a second opinion.
 
         
 
              W.R. Irey, M.D., reported on October 1,4,, 1987 that he 
 
         evaluated claimant for right shoulder pain. and also carpal 
 
         tunnel syndrome.  Claimant reported to him that:she worked as a 
 
         labeler which required repetitive reaching with her right hand.  
 
         She had had pain intermittently for several weeks and months, but 
 
         now it is constant and very aggravating.  Cortisone injections 
 
         gave only temporary relief.  Claimant told him, "She worked about 
 
         45 straight days and thinks this may have aggravated it".  
 
         Scapula x-rays were normal.  Dr. Irey diagnosed, "Probable 
 
         chronic muscle
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 7
 
         
 
         
 
         strain or tendonitis about the shoulder girdle in the region of 
 
         her Rhomboid's."  Dr. Irey agreed with Dr. Catalona's diagnosis 
 
         and treatment.  Dr. Irey recommended a trial off work as 
 
         appropriate.  Dr. Irey concluded by saying, "I think this can be 
 
         considered at least work aggravated although I told her I did not 
 
         know whether it was solely work caused.  I think the same is true 
 
         with her carpal tunnel syndrome."  The parties stipulated that 
 
         claimant was taken off work from October 14, 1987 to November 2, 
 
         1987 and that she was paid temporary disability benefits for that 
 
         period of time.
 
         
 
              Dr. Catalona remarked on March 24, 1988, that he received a 
 
         telephone call from employer that the workers' compensation 
 
         insurance had authorized the carpal tunnel syndrome as work 
 
         related.  Then on March 31, 1988, after the surgery was 
 
         scheduled, he noted that the workers, compensation insurance 
 
         changed their mind and denied the carpal tunnel syndrome was work 
 
         related (ex. 4, p. 4).
 
         
 
              Carpal tunnel surgery was performed on the right hand on 
 
         March 31, 1988 and on the left hand on May 19, 1988 (ex. 4, p. 
 
         4).  Dr. Catalona verified that he did issue a slip restricting 
 
         her work classification because of chronic right shoulder pain on 
 
         July 7, 1989 (ex. 4, p. 4).  On August 27, 1984, claimant signed 
 
         an application for group accident and sickness benefits on which 
 
         she checked the block, "yes" that the condition was due to an 
 
         occupational injury or disease.
 
         
 
              On July 19, 1989, Dr. Catalona wrote as follows:
 
         
 
              I agree with Dr. Worrell that it appears Ms. Greenhaw has 
 
              suffered a musculo-ligamentous type of injury.  She suffers 
 
              pain without loss of motion which makes it difficult to 
 
              determine permanent impairment.  The prognosis for ultimate 
 
              recovery from her pain should be good although I am unable 
 
              to predict how long it will take.
 
         
 
         (ex. 36)
 
         
 
              Dr. Catalona gave a deposition on June 12, 1989.  He related 
 
         that he is a board certified orthopedic surgeon and that he has 
 
         practiced orthopedic medicine for 46 years.  The doctor related 
 
         that the EMG on September 21, 1987 confirmed carpal tunnel 
 
         syndrome.    He related this to claimant and, " ... then I 
 
         described the options of treatment, a wait and see, change jobs, 
 
         avoid repetitive motions, and then I related to her that we do 
 
         operations for that condition... " (ex. 41, p. 9).  Dr. Catalona 
 
         said he considered claimant's right shoulder problem to be an 
 
         overuse syndrome, but that it was also related to the injury 
 
         which occurred on August 18, 1987 (ex. 41, pp. 11 & 12).  As to
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 8
 
         
 
         
 
         the cause of the shoulder pain and the carpal tunnel syndrome, 
 
         Dr. Catalona testified:
 
         
 
                 Well, one needs to determine why she was having this 
 
              persistent pain and in my mind I couldn't relate it all to 
 
              her injury, especially since she wasn't getting any better 
 
              and knowing the type of work that she was doing.  I was 
 
              relating some of the persistence of her pain both in her 
 
              shoulder and her hands to her work.
 
         
 
         (ex. 41, p. 14)
 
         
 
              Dr. Catalona added:
 
         
 
                 Had I altered my opinion, no, because--no.  Again knowing 
 
              the type of work that she was doing I had to consider that 
 
              not only the injury, but her work was contributing to the 
 
              persistence of her symptoms.
 
         
 
         (ex. 41, p. 14)
 
         
 
              In a letter dated March 17, 1988, Dr. Catalona stated, "All 
 
         I can say is that, yes, repetitive motion of the hands can 
 
         precipitate carpal tunnel syndrome. "  However, Dr. Catalona at 
 
         that time left the decision up to the insurance carrier.  
 
         However, Dr. Catalona was more definitive in his deposition.
 
         
 
              Q. Doctor, on 3-15-88 do you have an opinion to a reasonable 
 
              degree of medical certainty as to what would have caused 
 
              that bilateral carpal tunnel syndrome in Judy Greenhaw?
 
              
 
              A. Yes, sir, I do.
 
              
 
              Q. What would that be?
 
              
 
              A. Again knowing of her work I would relate it to her
 
              work.
 
              
 
              Q. In your Exhibit Number 1 you do not definitively say in 
 
              there that it is related to her work; is that correct?
 
              
 
              A  That's correct.
 
              
 
              Q. But as of today you do feel that at that point in time it 
 
              was related to her work?
 
              
 
              A. Well, of course I'm being presumptive in saying that I 
 
              believe it was work related.  However, knowing the type of 
 
              work that she does--of course I'm not aware
 

 
              
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 9
 
         
 
         
 
              of anything else that she does, but with the information 
 
              available to me it would--it would seem to be reasonable to 
 
              relate her carpal tunnel syndrome to her work.
 
         
 
         (ex. 41, pp. 18 & 19)
 
         
 
              The doctor believed that the bilateral carpal tunnel 
 
         developed simultaneously, worse on the right than on the left, 
 
         according to her description (ex. 41, p. 20).
 
         
 
              Dr. Catalona was asked whether the carpal tunnel surgery 
 
         resulted in any permanent impairment to her hands, wrists or 
 
         arms.  He replied:
 
         
 
              A. I don't know of any and I wouldn't expect that she would 
 
              have any, but I haven't seen her all this while, but she has 
 
              been relieved of the numbness and tingling of her hands and 
 
              carpal tunnel rarely leaves any permanent impairment.
 
              
 
              Q. As you sit here today, it is your medical opinion that 
 
              she has no permanent impairment from either the operations?
 
              
 
              A. I would not expect her, but I don't know.
 
         
 
         (ex. 41, pp. 23)
 
         
 
              Dr. Catalona was asked about impairment to the right 
 
         shoulder.  He replied:
 
         
 
              A. There's no mention made of it once the pain and the 
 
              numbness and tingling localized to her hands, then that sort 
 
              of just dropped into the background and I never heard of it 
 
              after that.
 
         
 
         (ex. 41, p. 23)
 
         
 
              Dr. Catalona examined reports he made to the insurance 
 
         company on April 5, 1988; May 10, 1988; and June 30, 1988; which 
 
         checked the, "no" block to the question, "Was condition related 
 
         to patient's employment?"  Dr. Catalona explained that he gave 
 
         these answers on the basis of the insurance company telling him 
 
         that it was not a work-related claim (ex. 41, pp. 25-27).
 
         
 
                           APPLICABLE LAW AND  ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 10
 
         
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that she received injuries on August 18, 1987 and 
 
         September 21, 1987, which arose out of and in the course of her 
 
         employment.  McDowell v. Town of Clarksville, 241 N.W.2d 904 
 
         (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 
 
         154 N.W.2d 128 (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of August 18, 1987 and September 
 
         21, 1987 are causally related to the disability on which she now 
 
         bases her claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 
 
         N.W.2d 607 (1945).  A possibility is insufficient; a probability 
 
         is necessary.  Burt v. John Deere Waterloo Tractor Works, 247 
 
         Iowa 691, 73 N.W.2d 732 (1955).  The question of causal 
 
         connection is essentially within the domain of expert testimony.  
 
         Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 
 
         (1960).
 
         
 
              However, expert medical evidence must be considered with all 
 
         other evidence introduced bearing on the causal connection.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion of experts need 
 
         not be couched in definite, positive or unequivocal language.  
 
         Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, 
 
         the expert opinion may be accepted or rejected, in whole or in 
 
         part, by the trier of fact.  Id., at 907.  Further, the weight to 
 
         be given to such an opinion is for the finder of fact, and that 
 
         may be affected by the completeness of the premise given the 
 
         expert and other surrounding circumstances.  Bodish, 257 Iowa 
 
         516, 133 N.W.2d 867.  See also Musselman, 261 Iowa 352, 154 
 
         N.W.2d 128 (1967).
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the fall injury of August 18, 
 
         1987 was the cause of any permanent impairment.  As defendants' 
 
         counsel pointed out there was no impairment rating issued by 
 
         either Dr. Irey or Dr. Catalona and there were no permanent 
 
         restrictions imposed by either Dr. Irey or Dr. Catalona.  When 
 
         Dr. Catalona was deposed, and was asked about permanent injury to 
 
         the right shoulder, his reply was that there was no mention of 
 
         the right shoulder after the numbness and tingling localized in 
 
         her hands.  He said, " ... that sort of just dropped into the 
 
         background and I never heard of it after that."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 11
 
         
 
         
 
              Claimant's counsel argued that Dr. Catalona changed her work 
 
         exertion classification from F to D at claimant's request due to 
 
         her right shoulder pain.  This is verified by claimant's 
 
         testimony and by Dr. Catalona's records.  However, there is no 
 
         indication from claimant's testimony, from Dr. Catalona's 
 
         records, or from Dr. Catalona, when he was deposed, that this 
 
         modification of her work to accommodate her right shoulder pain 
 
         constituted a permanent restriction.
 
         
 
              Claimant and her sister testified to various limitations of 
 
         her activities.  Garrison testified that claimant had become a 
 
         chronic complainer.  She did not go shopping with her like she 
 
         used to, that claimant no longer drove the car and that claimant 
 
         had gained considerable weight due to her inactivity (tr. pp. 
 
         53-58).  Claimant, herself, testified that she has numbness, 
 
         tingling and pain in her hands, she cannot manipulate doorknobs.  
 
         She cannot write or sew for extended periods of time and if she 
 
         does her hands swell.  Her right shoulder continues to give her 
 
         pain.  Claimant testified that her only activity outside of work 
 
         is playing bingo and performing her housework at a much easier 
 
         pace (tr. pp. 31-35).
 
         
 
              Claimant admitted however, that she was able to perform the 
 
         same tasks that she performed before the injuries if she takes 
 
         aspirin or Advil and kneads her hands in the warm sand (tr. pp. 
 
         45 & 46).  Furthermore, claimant wrote two letters to employer 
 
         requesting to be restored to the duties she performed prior to 
 
         the injury (exs. 38 & 39).  On December 10, 1987, she said, "My 
 
         shoulder if fine ... " (ex. 39).  It was further established that 
 
         claimant is making more money after the injuries than she was 
 
         making before the injuries (ex. 40).
 
         
 
              Pain that is not substantiated by clinical findings is not a 
 
         substitute for impairment.  Waller vs. Chamberlain Mfg, II Iowa 
 
         Industrial Commissioner Report 419, 425 (1981).  From the 
 
         foregoing, it is determined that claimant did not sustain the 
 
         burden of proof by a preponderance of the evidence that the fall 
 
         injury of August 18, 1987 was the cause of any permanent 
 
         impairment and consequently, she is not entitled to any permanent 
 
         partial disability benefits for this injury.
 
         
 
              Claimant did sustain the burden of proof by a preponderance 
 
         of the evidence that she sustained an injury on September 21, 
 
         1987, which arose out of and in the course of employment with 
 
         employer.
 
         
 
              Left wrist difficulties were noted in the company's medical 
 
         records as early as May of 1985 (ex. 3, pp. 2 & 3).  Dr. Catalona 
 
         examined her for wrist complaints that occurred at work on May 
 
         23, 1985 (ex. 4, p. 2).  At the time of her presurgery physical 
 
         examination by Dr. Wettach, on March 31, 1988, she reported a
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 12
 
         
 
         
 
         history of two years of intermittent bilateral hand symptoms, 
 
         including intermittent numbness and tingling of the hands, 
 
         feeling as if they are falling asleep (ex. 2, p. 16).  Dr. Irey 
 
         stated on October 14, 1987, "I think this can be considered at 
 
         least work aggravated although I told her I did not know whether 
 
         it was solely,work caused.  I think the same is true with her 
 
         carpal tunnel syndrome."
 
         
 
              Dr. Catalona was not truly definitive in his opinion on 
 
         causal connection until his deposition.  However, at that time he 
 
         indicated several times that the causal connection existed 
 
         between the work and the carpal tunnel syndrome.  When the EMG on 
 
         September 21, 1987 confirmed bilateral carpal tunnel syndrome, he 
 
         gave claimant the options of treatment, wait and see, change 
 
         jobs, avoid repetitive motion or surgery.  The suggestion to 
 
         change jobs or avoid repetitive motions clearly indicates a 
 
         causal connection between the work and the carpal tunnel syndrome 
 
         (ex. 41, p. 9).  At another point in his testimony, Dr. Catalona 
 
         related the persistence of the pain in both her shoulder and her 
 
         hands to the type of work that she was doing (ex. 41, pp. 13 & 
 
         14).  He denied he changed his opinion.  Dr. Catalona said, " ... 
 
         Again knowing the type of work that she was doing I had to 
 
         consider that not only the injury, but her work was contributing 
 
         to the persistence of her symptoms."  (ex. 41, p. 14).  
 
         Eventually, Dr. Catalona, point blank, stated, "Again, knowing of 
 
         her work I would relate it to her work." (ex. 41, p. 19).
 
         
 
              Therefore, claimant's testimony that her work caused the 
 
         carpal tunnel syndrome is supported by the professional medical 
 
         opinion of the two orthopedic surgeons who examined her, Dr. Irey 
 
         and Dr. Catalona.  Consequently, it is determined that claimant 
 
         did sustain an injury on September 21, 1987, which arose out of 
 
         and in the course of employment with employer in the nature of 
 
         bilateral carpal tunnel syndrome which developed simultaneously.
 
         
 
              Claimant was off work commencing with the date of her 
 
         hospitalization for the first carpal tunnel surgery on March 30, 
 
         1988 (ex. 30) until she was returned to work by Dr. Catalona on 
 
         July 18, 1988 (ex. 34).  The parties, however, stipulated to a 
 
         benefit period from March 30, 1988 to July 17, 1988.
 
         
 
              Claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained any permanent 
 
         impairment or disability as a result of the carpal tunnel 
 
         syndrome injury.   Dr. Irey did not award:an impairment rating 
 
         and did not impose any permanent restrictions or limitations.. 
 
         Dr. Catalona, the treating orthopedic surgeon who performed the 
 
         surgeries, did not award an impairment rating and did not impose 
 
         any permanent restrictions or limitations.  On the contrary, Dr. 
 
         Catalona said that he did not expect that she would have any 
 
         permanent impairment and that carpal tunnel.rarely leaves any
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 13
 
         
 
         
 
         permanent impairment (ex. 41, p. 23).  Again, pain not 
 
         substantiated by clinical findings is not a substitute for 
 
         impairment.  Waller, II Iowa Industrial commissioner Report 419, 
 
         425 (1981).  Since claimant did not prove the injury caused any 
 
         permanent impairment, then claimant is not entitled to any 
 
         permanent disability benefits for the carpal tunnel syndrome 
 
         injury.
 
         
 
              Claimant is entitled to medical benefits for both the 
 
         treatment of the shoulder and the carpal tunnel syndrome.  Since 
 
         no medical bills have been introduced into evidence, no specific 
 
         award as to specific bills in specific amounts can be made.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              Wherefore, based upon the evidence presented, the following 
 
         findings of fact are made:
 
         
 
              That claimant has been employed by employer from December 4, 
 
         1978 until the time of the hearing on August 15, 1989.
 
         
 
              That claimant fell down at work on August 18, 1987 and 
 
         injured her right shoulder, left knee and both hands.
 
         
 
              That claimant introduced no medical evidence to show that 
 
         the right shoulder injury was the cause of any permanent 
 
         impairment or permanent restrictions or limitations.
 
         
 
              That both Dr. Catalona and Dr. Irey diagnosed bilateral 
 
         carpal tunnel syndrome which developed simultaneously and was 
 
         confirmed by an EMG on September 21, 1987.
 
         
 
              That Dr. Irey said that the carpal tunnel syndrome was 
 
         aggravated by her work.
 
         
 
              That Dr. Catalona stated that the bilateral carpal tunnel 
 
         syndrome was caused by her work.
 
         
 
              That carpal tunnel surgery was performed on the right hand 
 
         by Dr. Catalona on March 31, 1988 and on the left hand on May 19, 
 
         1988.
 
         
 
              That neither Dr. Irey nor Dr. Catalona awarded an impairment 
 
         rating for either the shoulder injury or the carpal tunnel 
 
         injury.
 
         
 
              That claimant was off work commencing with the date of her 
 
         hospitalization for the first carpal tunnel surgery on March 30, 
 
         1988 until she was returned to work by Dr. Catalona on July 18, 
 
         1988.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 14
 
         
 
         
 
              That neither Dr. Irey nor Dr. Catalona imposed any permanent 
 
         restrictions or limitations for either the shoulder injury or the 
 
         carpal tunnel injury.
 
         
 
              That no other medical evidence was submitted to establish 
 
         any permanent impairment or disability for either the right 
 
         shoulder or both hands.
 
         
 
              That claimant did sustain a bilateral carpal tunnel injury 
 
         to her hands on September 21, 1987 as alleged in her petition.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the evidence presented and the foregoing 
 
         principles of law, the following conclusions of law are made:
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the fall injury of August 18, 
 
         1987 was the cause of any permanent impairment.
 
         
 
              That claimant is not entitled to any permanent partial 
 
         disability benefits as a result of the fall injury of August 18, 
 
         1987.
 
         
 
              That claimant did sustain the burden of proof by a 
 
         preponderance of the evidence that she sustained a bilateral 
 
         carpal tunnel syndrome injury which developed simultaneously on 
 
         September 21, 1987 which arose out of and in the course of 
 
         employment with employer.
 
         
 
              That the injury of September 21, 1987 was the cause of 
 
         temporary disability from March 30, 1988 to July 17, 1988.
 
         
 
              That claimant is entitled to 20.571 weeks of temporary total 
 
         disability for the period from March 30, 1988 to July 17, 1988.
 
         
 
              That claimant did not sustain the burden of proof by a 
 
         preponderance of the evidence that the carpal tunnel injury of 
 
         September 21, 1987 was the cause of permanent impairment or 
 
         disability.
 
         
 
              That claimant is not entitled to permanent disability 
 
         benefits for the carpal tunnel injury of September 21, 1987.
 
         
 
              That claimant is entitled to medical benefits for the 
 
         treatment to both her shoulder and her hands.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 15
 
         
 
         
 
                                      ORDER
 
         
 
              THEREFORE, IT IS ORDERED:
 
         
 
              That defendants pay to claimant twenty point five seven one 
 
         (20.571) weeks of temporary total disability benefits at the rate 
 
         of two hundred twenty-seven and 21/100 dollars ($227.21) per week 
 
         in the total amount of four thousand six hundred seventy-three 
 
         and 94/100 dollars ($4,673.94) for the period March 30, 1988 to 
 
         July 18, 1988.
 
         
 
              That claimant is to reimburse the employee nonoccupational 
 
         group health plan carrier two thousand four hundred seventy and 
 
         77/100 dollars ($2,470.77) to satisfy their lien for benefits 
 
         paid to claimant prior to hearing as agreed to by claimant and 
 
         defendant.
 
         
 
              That all accrued benefits are to be paid in a lump sum.
 
         
 
              That interest will accrue pursuant to Iowa Code section 
 
         85.30.
 
         
 
              That defendants pay to claimant or the provider of medical 
 
         services the expenses of treatment to the shoulder and the hands.
 
         
 
              That the costs of this action, including the cost of the 
 
         transcript, are charged to defendants pursuant to Division of 
 
         Industrial Services Rule 343-4.33.
 
         
 
              That defendants file claim activity reports as requested by 
 
         this agency pursuant to Division of Industrial Services Rule 
 
         3433.1.
 
         
 
              Signed and filed this 29th day of March, 1990.
 
         
 
         
 
         
 
         
 
                                         WALTER R. McMANUS, JR.
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         Copies to:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 E. 6th St
 
         PO Box 339
 
         Davenport, Iowa 52805-0339
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         GREENHAW VS. HEINZ, INC.
 
         Page 16
 
         
 
         
 
         Mr. Greg A..Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 E 3rd St
 
         Davenport, Iowa 52801
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
                                         51401; 51402.40; 51803; 
 
         51108.50; 
 
                                         51401; 51402.20; 51402.30; 
 
                                         51402.40; 51402.60; 51801; 
 
         52500; 
 
                                         52700
 
                                         Filed March 29, 1990
 
                                         Walter R. McManus, Jr.,
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY GREENHAW,
 
         
 
              Claimant,
 
         
 
         VS.
 
              :                           File Nos.  866930
 
         HEINZ, U.S.A.,                  :          883578
 
         
 
               Employer,                 : A R B I T R A T I 0 N
 
         
 
         and                               D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51401; 51402.40; 51803
 
         
 
              Claimant failed to prove the shoulder injury was the cause 
 
         of permanent impairment and was not awarded any permanent 
 
         disability benefits for the shoulder injury.
 
         
 
         51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60
 
         
 
              Claimant did prove an injury arising out of and in the 
 
         course of employment for bilateral carpal tunnel syndrome which 
 
         occurred simultaneously based on the testimony of both the 
 
         treating physician and also a consulting orthopedic surgeon.  
 
         Claimant failed to prove any permanent impairment.  Neither 
 
         orthopedic surgeon award6d an impairment rating or imposed any 
 
         permanent restrictions for either the shoulder injury of the 
 
         carpal tunnel syndrome injury.
 
         
 
         51801
 
         
 
              Claimant awarded temporary total disability benefits for a 
 
         stipulated period of time while she was off work for two carpal 
 
         tunnel syndrome surgeries.
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         51803
 
         
 
              Claimant was not awarded any permanent disability benefits 
 
         for the carpal tunnel syndrome injury.
 
         
 
         
 
         
 
         52500; 52700
 
         
 
              Claimant awarded medical benefits  for both the shoulder 
 
         injury and the bilateral carpal tunnel  syndrome injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
              
 
                  
 
                                       51401; 51402.40; 51803; 51108.50; 
 
                                       51401; 51402.20; 51402.30; 
 
                                       51402.40; 51402.60; 51801; 52500; 
 
                                       52700
 
                                       Filed March 29, 1990
 
                                       Walter R. McManus, Jr.,
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JUDY GREENHAW,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                  File Nos.  866930
 
         HEINZ, U.S.A.,                                      883578
 
         
 
              Employer,                        A R B I T R A T I 0 N
 
         
 
         and                                     D E C I S I 0 N
 
         
 
         LIBERTY MUTUAL INSURANCE CO.,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         51401; 51402.40; 51803
 
         
 
              Claimant failed to prove the shoulder injury was the cause 
 
         of permanent impairment and was not awarded any permanent 
 
         disability benefits for the shoulder injury.
 
         
 
         51108.50; 51401; 51402.20; 51402.30; 51402.40; 51402.60
 
         
 
              Claimant did prove an injury arising out of and in the 
 
         course of employment for bilateral carpal tunnel syndrome which 
 
         occurred simultaneously based on the testimony of both the 
 
         treating physician and also a consulting orthopedic surgeon.  
 
         Claimant failed to prove any permanent impairment.  Neither 
 
         orthopedic surgeon awarded an impairment rating or imposed any 
 
         permanent restrictions for either the shoulder injury of the 
 
         carpal tunnel syndrome injury.
 
         
 
         51801
 
         
 
              Claimant awarded temporary total disability benefits for a 
 
         stipulated period of time while she was off work for two carpal 
 
         tunnel syndrome surgeries.
 
         
 
         51803
 
         
 
                                                
 
                                                         
 
              Claimant was not awarded any permanent disability benefits 
 
         for the carpal tunnel syndrome injury.
 
                                                         
 
         52500; 52700
 
         
 
              Claimant awarded medical benefits  for both the shoulder 
 
         injury and the bilateral carpal tunnel  syndrome injury.
 
 
 
                                      
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES L. KILKER,
 
         
 
              Claimant,
 
                                                   File No. 867017
 
         VS.
 
         
 
                                                   A R B I T R A T I 0 N
 
         BUILDERS SAND & CEMENT,
 
                                                     D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by James L. 
 
         Kilker, claimant, against Builders Sand & Cement, employer 
 
         (hereinafter referred to as Builders), and Liberty Mutual 
 
         Insurance Company, insurance carrier, defendants, for workers' 
 
         compensation benefits as a result of an alleged injury on October 
 
         5, 1987.  On November 27, 1989, a hearing was held on claimant's 
 
         petition and the matter was considered fully submitted at the 
 
         close of this hearing.
 
         
 
              The parties have submitted a prehearing report of contested 
 
         issues and stipulations which was approved and accepted as a part 
 
         of the record of this case at the time of hearing.  Oral 
 
         testimony and written exhibits were received during the hearing 
 
         from the parties.  The exhibits offered into the evidence are 
 
         listed in the prehearing report.
 
         
 
              According to the prehearing report, the parties have 
 
         stipulated to the following matters:
 
         
 
              1. On October 5, 1987, claimant received an injury which 
 
         arose out of and in the course of his employment with Builders.
 
         
 
              2. Claimant is seeking temporary total disability or healing 
 
         period benefits from October 6, 1987 through October 25, 1987; 
 
         October 27, 1987 through December 8, 1987; February 15, 1988 
 
         through March 22, 1988; June  11, 1988 through June 19, 1988; 
 
         and, from October 20, 1988 through
 
         
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 2
 
         
 
         
 
         December 20, 1988.  Defendants agree that claimant did not work 
 
         during these periods of time.
 
         
 
              3. If the injury is found to have caused permanent 
 
         disability, the type of disability is an industrial disability to 
 
         the body as a whole.
 
         
 
              4. Claimant's rate of weekly compensation in the event of an 
 
         award of weekly benefits from this proceeding shall be $102.67.
 
         
 
                                      ISSUES
 
         
 
              The parties have submitted the following issues for 
 
         determination in this proceeding:
 
         
 
              I. Whether there is a causal relationship between the work 
 
         injury and the claimed disability; and,
 
         
 
              II. The extent of claimant's entitlement to weekly benefits 
 
         for disability.
 
         
 
              The parties indicated in the prehearing report that 
 
         entitlement to medical benefits was no longer at issue at the 
 
         time of hearing.
 
         
 
                              STATEMENT OF THE FACTS
 
         
 
              The following is a brief statement highlighting some of the 
 
         more pertinent evidence presented.  Whether or not specifically 
 
         referred to in this statement, all of the evidence received at 
 
         the hearing was reviewed and considered in arriving at this 
 
         decision.  Any conclusions about the evidence received contained 
 
         in the following statement shall be viewed as preliminary 
 
         findings of fact.
 
         
 
              Claimant testified that he worked for Builders only a couple 
 
         of weeks before the work injury as a cement truck driver.  
 
         Claimant earned $7.90 per hour in this job at the time of the 
 
         injury.
 
         
 
              The facts surrounding the injury are not in dispute.  
 
         Claimant testified that on October 5, 1987, while entering an 
 
         intersection in a public roadway, he was struck from the side by 
 
         an automobile.  Claimant sought treatment for left leg pain 
 
         subsequent to this accident from Ahmad Chamany, M.D., a few days 
 
         later.  Soon thereafter, claimant also began to experience back 
 
         pain along with his left leg pain and numbness.  Later in 
 
         October, claimant was referred for an evaluation to Eugene 
 
         Collins, M.D., specialty unknown.  Dr. Collins suspected a low 
 
         back radiculopathy and ordered a myelogram test.  This test 
 
         failed to reveal any abnornalities and claimant was referred by 
 
         Dr. Collins back to Dr. Chamany.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 3
 
         
 
         
 
              In December 1987, claimant was still suffering from his low 
 
         back and left leg pain and numbness and claimant was referred to 
 
         an orthopedist, John E. Sinning, M.D.  Dr. Sinning then treated 
 
         claimant over the following year with medications, home exercises 
 
         and supervised physical therapy.  On December 9, 1987, Dr. 
 
         Sinning felt that claimant was able to return to work at 
 
         Builders.  However, defendant preferred that he not return and he 
 
         was held off work until spring.  Claimant then attempted to 
 
         operate as an owner/operator truck driver in February 1988, but 
 
         stated that he quit because he could not tolerate the pain.
 
         
 
              Claimant returned to Builders in the same job he had at the 
 
         time of the injury on March 22, 1988, and worked until July 14, 
 
         1988, at which time he quit.  Claimant testified that he 
 
         experienced considerable back strain at the time he quit 
 
         requiring him to "survive on pain killers."   He also testified 
 
         that he quit because he wanted air brakes on his truck repaired 
 
         and Builders refused.  Claimant reported to his physicians in 
 
         October 1988, that he quit because of the air brake problem.  
 
         Claimant testified that the left leg gave out in June 1988, and 
 
         he fell through some glass doors at home which aggravated his 
 
         pain.
 
         
 
              In October 1988, claimant had returned to Dr. Sinning with 
 
         much of the same symptoms of low back and left leg pain and 
 
         numbness.  At this time, Dr. sinning ordered a CAT scan and EMG 
 
         tests.  Although the EMG tests were normal, the CAT scan showed a 
 
         herniated disc at two levels of claimant's low spine. Although 
 
         claimant had no other findings of abnormalities, Dr. Sinning 
 
         finally diagnosed that claimant had indeed suffered the two 
 
         herniated discs revealed in the CAT scan given the consistency of 
 
         claimant's complaints since October of 1987.  He felt at the time 
 
         that claimant should not be driving in light of the test results 
 
         and his diagnosis.  On December 20, 1988, Dr. Sinning reported 
 
         that claimant had reached maximum healing and he released 
 
         claimant from his care.  In March 1989, Dr. Sinning opined as a 
 
         result of the October 5, 1987 injury that claimant suffers from a 
 
         10 percent permanent partial impairment to the body as a whole 
 
         due to low back difficulties.
 
         
 
              Claimant testified that his past employment primarily 
 
         consists of manual labor work and truck driving.  Early in his 
 
         life he was a deputy Marshall.  According to claimant, he was 
 
         fired from that job for being too lenient.  He has not worked in 
 
         law enforcement since.  Claimant has worked as a helper in a 
 
         machine shop, as a warehouse operator in a feed business, and as 
 
         a dump  truck and tow truck operator.  Claimant's testimony as to 
 
         the nature and extent of his earnings from these past employments 
 
         at the time of hearing was quite limited.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 4
 
         
 
              Claimant stated at hearing that he is 36 years of age and 
 
         has a high school education but that his high school experience 
 
         was limited to a vocational course of study in machine shop work.  
 
         Claimant completed one year of basic law enforcement in local 
 
         community shop college before becoming a deputy marshall.
 
         
 
              Claimant's activities, subsequent to his resignation from 
 
         Builders, are limited to brief employment at a truck stop and as 
 
         a delivery truck driver.  He testified that he was compelled to 
 
         leave these employments due to low back pain.  His primary 
 
         complaint with the driving job was the lifting involved in the 
 
         delivery of doors.  Claimant testified that he attempted to 
 
         return to over-the-road trucking at one time by riding with one 
 
         of his relatives on a road trip to Michigan.  Claimant testified 
 
         that this trip resulted in considerable pain and loss of 
 
         sensation in his legs.  Claimant testified that he also attempted 
 
         truck sales work but this failed as he did not make sufficient 
 
         money.  Claimant is currently unemployed and is receiving ADC 
 
         benefits for caring for his 14-year-old son.  Claimant did not 
 
         discuss what his current employment plans may be.  A counselor 
 
         from the State Division of Vocational Rehabilitation testified 
 
         that he attempted to find claimant employment in the area of his 
 
         residence within the last six months before the hearing but he 
 
         could not do so.  He testified that four or five employers were 
 
         contacted.  Claimant's personal job search in this case only 
 
         began six months before the hearing as well.
 
         
 
              Dr. Sinning testified that he felt that claimant could 
 
         return to the cement truck driving job he held at the time of the 
 
         work injury when he released claimant from his care in December 
 
         of 1988.
 
         
 
                           APPLICABLE LAW AND ANALYSIS
 
         
 
              Note: A credibility finding is necessary to this decision as 
 
         defendants place claimant's credibility at issue.  From his 
 
         demeanor while testifying, claimant was found credible.
 
         
 
              I. The claimant has the burden of proving by a 
 
         pre-ponderance of the evidence that the work injury is a cause of 
 
         the claimed disability.  A disability may be either temporary or 
 
         permanent.  In the case of a claim for temporary disability, the 
 
         claimant must establish that the work injury was a cause of 
 
         absence from work and lost earnings during a period of recovery 
 
         from the injury.  Generally, a claim of permanent disability 
 
         invokes an initial determination of whether the work injury was a 
 
         cause of permanent physical impairment or permanent limitation in 
 
         work activity.  However, in some instances, such as a job 
 
         transfer caused by a work injury, permanent disability benefits 
 
         can be awarded
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 5
 
         
 
         
 
         without a showing of a causal connection to a physical change of 
 
         condition.  Blacksmith v. All-American, Inc., 290 N.W.2d 348, 354 
 
         (Iowa 1980); McSpadden v. Big Ben Coal Co. 288 N.W.2d 181 (Iowa 
 
         1980).
 
         
 
              The question of causal connection is essentially within the 
 
         domain of expert medical opinion.  Bradshaw  v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).  The opinion of 
 
         experts need not be couched in definite, positive or unequivocal 
 
         language and the expert opinion may be accepted or rejected, in 
 
         whole or in part, by the trier of fact.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  The weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish v. Fischer,.Inc., 257 
 
         Iowa 516, 133 N.W.2d 867 (1965).
 
         
 
              Furthermore, if the available expert testimony is 
 
         insufficient along to support a finding of causal connection, 
 
         such testimony may be coupled with nonexpert testimony to show 
 
         causation and be sufficient to sustain an award. Giere  v. Asse  
 
         Haugen Homes, Inc., 259 Iowa 1065, 146 N.W.2d 911, 915 (1966).  
 
         Such evidence does not, however, compel an award as a matter of 
 
         law.  Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 536 (Iowa 
 
         1974).  To establish compensability, the injury need only be a 
 
         significant factor, not be the  only factor causing the claimed 
 
         disability.  Blacksmith, 290 N.W.2d 348, 354.  In the case of a 
 
         preexisting condition, an employee is not entitled to recover for 
 
         the results of a preexisting injury or disease but can recover 
 
         for an aggravation thereof which resulted in the disability found 
 
         to exist.  Olson v. Goodyear Service Stores, 255  Iowa 1112, 125 
 
         N.W.2d 251 (1963).
 
         
 
              In the case sub judice, claimant contends that he has 
 
         suffered disability as a result of the work injury due to 
 
         permanent partial impairment.  First, the uncontroverted views of 
 
         Dr. Sinning clearly establish that claimant suffers from a 10 
 
         percent permanent partial impairment.  Second, the uncontroverted 
 
         views of Dr. Sinning also show the requisite causal connection 
 
         between the work injury and this permanent impairment.
 
         
 
              II.  Claimant must establish by a preponderance of the 
 
         evidence the extent of weekly benefits for permanent disability 
 
         to which claimant is entitled.  As the claimant has shown that 
 
         the work injury was a cause of a permanent physical impairment or 
 
         limitation upon activity involving the body as a whole, the 
 
         degree of permanent disability must be measured pursuant to Iowa 
 
         Code section 85.34 (2) (u).  However, unlike scheduled member 
 
         disabilities, the degree of disability under this provision is 
 
         not measured solely by the extent of a functional impairment or 
 
         loss of use of a
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 6
 
         
 
         
 
         body member.  A disability to the body as a whole or an 
 
         "industrial disability" is a loss of earning capacity resulting 
 
         from the work injury.  Diederich v. Tri-City Railway Co., 219 
 
         Iowa 587, 593, 258 N.W. 899 (1935).  A physical impairment or 
 
         restriction on work activity may or may not result in such a loss 
 
         of earning capacity.  The extent to which a work injury and a 
 
         resulting medical condition has resulted in an industrial 
 
         disability is determined from examination of several factors.  
 
         These factors include the employee's medical condition prior to 
 
         the injury, immediately after the injury and presently; the situs 
 
         of the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         Olson, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963).  See 
 
         Peterson v.Truck Haven Cafe, Inc., (Appeal Decision, February 28, 
 
         1985).
 
         
 
              Claimant's medical condition before the work injury was 
 
         excellent and he had no functional impairments or ascertainable 
 
         disabilities before October 5, 1987.  Claimant was fully able to 
 
         perform physical tasks involving heavy repetitive lifting.  
 
         Claimant's treating physician, Dr. Sinning, has as a result of 
 
         the work injury given claimant a significant permanent impairment 
 
         rating to the body as a whole.  More importantly, from an 
 
         industrial disability standpoint, claimant's physicians have 
 
         restricted claimant's work activities by prohibiting lifting over 
 
         50 pounds with only occasional lifting permitted up to 75 pounds.
 
         
 
              However, according to Dr. Sinning, claimant is able to 
 
         return to his former work at Builders or any other truck driving 
 
         work that does not require heavy lifting.  Claimant testified 
 
         that he cannot ride in a truck without pain but the examples he 
 
         provided to establish this fact at the time of hearing all 
 
         occurred prior to Dr. Sinning's release from his care.  The 
 
         evidence indicates that claimant quit Builders due to his 
 
         dissatisfaction with the manner in which the vehicles were being 
 
         cared for.  Claimant testified that he left the delivery job in 
 
         1989 due to the lifting problems not any problems from driving.  
 
         Although claimant may be able to return to work as a driver, he 
 
         cannot perform heavy lifting over 50 pounds on a regular basis 
 
         which severely restricts his access to many if not most truck 
 
         driver positions on the labor market in the experience of this 
 
         agency.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 7
 
         
 
              Claimant is relatively young and his age would not deter 
 
         from vocational rehabilitation.  Although claimant does have a 
 
         high school education and exhibited average intelligence at the 
 
         hearing, little was shown to indicate claimant's potential for 
 
         formal vocational rehabilitation training.
 
         
 
              After examination of all the factors, it is found as a 
 
         matter of fact that claimant has suffered a 25 percent loss in 
 
         his earning capacity from his work injury.  Based upon such a 
 
         finding, claimant is entitled as a matter of law to 125 weeks of 
 
         permanent partial disability benefits under Iowa Code section 
 
         85.34(2) (u) which is 25 percent of 500 weeks, the maximum 
 
         allowable for an injury to the body as a whole in that 
 
         subsection.
 
         
 
              As claimant has established entitlement to permanent partial 
 
         disability, claimant is entitled to weekly benefits for healing 
 
         period under Iowa Code section 85.34 from the date of injury 
 
         until he returns to work; until he is medically capable of 
 
         returning to substantially similar work to the work he was 
 
         performing at the time of the injury; or, until it is indicated 
 
         that significant improvement from the injury is not anticipated, 
 
         whichever occurs first.  Dr. Sinning's uncontroverted testimony 
 
         indicates that claimant reached maximum healing on December 20, 
 
         1988.  Claimant will be awarded healing period benefits for the 
 
         times off work as stipulated by the parties prior to that time.
 
         
 
                                 FINDINGS OF FACT
 
         
 
              1. Claimant was a credible witness.  Claimant's appearance 
 
         while testifying indicated that he was testifying truthfully.
 
         
 
              2. On October 5, 1987, claimant suffered an injury to his 
 
         low back which arose out of and in the course of his employment 
 
         at Builders.  As a result of a car accident, claimant herniated 
 
         two discs in his lower back which resulted in chronic low back 
 
         pain and left leg pain with numbness upon the performance of 
 
         heavy exertion activity.
 
         
 
              3. The work injury of October 5, 1987, was a cause of a 
 
         period of total disability from work for the times off work 
 
         stipulated in the prehearing report and set forth in the 
 
         stipulations in the first part of this decision.  Claimant 
 
         reached maximum healing on December 20, 1988.  During this time, 
 
         claimant received extensive treatment of the work injury 
 
         consisting of limitations on activities; medications for pain and 
 
         inflammation; home exercises; and, supervised physical therapy.
 
         
 
              4. The work injury of October 5, 1987, is a cause of a 10 
 
         percent permanent partial impairment to the body as a
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 8
 
         
 
         
 
         whole and of permanent restrictions on claimant's physical 
 
         activity consisting of no lifting over 50 pounds with only 
 
         occasional lifting up to 75 pounds.  Claimant had no 
 
         ascertainable functional impairment prior to the work injury 
 
         herein.
 
         
 
              5. The work.injury of October 5, 1987, and the resulting 
 
         permanent partial impairment and work restrictions is a cause of 
 
         a 25 percent loss of earning capacity.  Claimant is 36 years of 
 
         age and has a high school education.  However, his formal 
 
         education placed emphasis on vocational study in machine work 
 
         which claimant has not utilized very much since leaving high 
 
         school.  Claimant has no ascertainable loss of earning capacity 
 
         prior to the work injury.  Claimant's physician imposed 
 
         work/activity restrictions does not prevent a return to the job 
 
         he was performing at the time of injury.  These restrictions do 
 
         prevent him from performing truck driving jobs on the labor 
 
         market requiring heavy lifting.  Claimant has made only recent 
 
         effort to seek alternative suitable employment.  Such efforts are 
 
         unsuccessful to date.  Claimant is also unable to return to most 
 
         of the heavy manual labor jobs he has held in the past.. 
 
         Claimant's employment in manual labor occupations and truck 
 
         driving is the type of employment for which he is best suited 
 
         given his work history and formal education.
 
         
 
                                CONCLUSIONS OF LAW
 
         
 
              Claimant has established under law entitlement to healing 
 
         period benefits set forth in the prehearing report and to 125 
 
         weeks of permanent partial disability benefits.
 
         
 
                                      ORDER
 
         
 
              1. Defendants shall pay to claimant one hundred twenty-five 
 
         (125) weeks of permanent partial disability benefits at the rate 
 
         of one hundred two and 67/100 dollars ($102.67) per week from 
 
         December 21, 1988.
 
         
 
              2. Defendants shall pay to claimant healing period benefits 
 
         at the rate of one hundred two and 67/100 dollars ($102.67) per 
 
         week for the following   periods of time: October 6, 1987 through 
 
         October 25, 1987; October 27, 1987 through December 8, 1987; 
 
         February 15, 1988 through March 22, 1988; June 11,  1988 through 
 
         June 19, 1988; and, October 20, 1988 through December 20, 1988.
 
         
 
              3. Defendants shall pay accrued weekly benefits in a lump 
 
         sum and shall receive a credit against this award for the 
 
         benefits previously paid as set forth in the stipulation in the 
 
         prehearing report.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              4. Defendants shall pay interest on weekly benefits awarded 
 
         herein as set forth in Iowa Code section 85.30.
 
         
 
         
 
         
 
         KILKER V. BUILDERS SAND & CEMENT
 
         Page 9
 
         
 
         
 
              5. Defendants shall pay the cost of this action pursuant to 
 
         Division of Industrial Services Rule 343-4.33.
 
         
 
              6. Defendants shall file activity reports on the payment of 
 
         this award as requested by this agency pursuant to Division of 
 
         Industrial Services Rule 343-3.1.
 
         
 
         
 
              Signed and filed this 30th day of January, 1990.
 
         
 
         
 
         
 
         
 
                                         LARRY P. WALSHIRE
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         Copies  To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         P 0 Box 339
 
         Davenport  IA  52805-0339
 
         
 
         Mr. Greg A. Egbers
 
         Attorney at Law
 
         600 Union Arcade Bldg.
 
         111 East Third St
 
         Davenport  IA  52801-1550
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         5-1803
 
                                         Filed January 30, 1990
 
                                         LARRY P. WALSHIRE
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JAMES L. KILKER,
 
         
 
              Claimant,
 
                                                 File No. 867017
 
         VS.
 
                                               A R B I T R A T I 0 N
 
         BUILDERS SAND & CEMENT,
 
                                                 D E C I S I 0 N
 
              Employer,
 
         
 
         and
 
         
 
         LIBERTY MUTUAL,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         5-1803   Extent of permanent partial disability benefits,
 
                  non-precedential
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
            Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
                                          :
 
            KEITH B. RAWSON,              :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :      File No. 867208
 
            MASON & HANGER                :
 
            SILAS MASON COMPANY, INC.     :   A R B I T R A T I O N
 
                                          :
 
                 Employer,                :      D E C I S I O N
 
                                          :
 
            and                           :
 
                                          :
 
            THE TRAVELERS INSURANCE       :
 
            COMPANY,                      :
 
                                          :
 
                 Insurance Carrier,       :
 
                 Defendants.              :
 
            ___________________________________________________________
 
            
 
                              statement of the case
 
            
 
                 This is a proceeding in arbitration brought by Keith 
 
            Rawson, claimant, against his employer, Mason & Hanger 
 
            Silas-Mason Company, and its insurance carrier, The 
 
            Travelers Insurance Company, to recover benefits under the 
 
            Iowa Workers' Compensation Act as a result of an alleged 
 
            injury occurring on October 8, 1987.
 
            
 
                 This matter came on for a hearing before the 
 
            undersigned deputy industrial commissioner at Burlington, 
 
            Iowa on December 18, 1990.
 
            
 
                 The record in the case consists of the testimony of the 
 
            claimant; Katherine Kleinkopf; Oakley Carlson, Jr., and 
 
            James Manard.  Claimant offered exhibits one through eight, 
 
            which were received into evidence.  Defendants offered 
 
            exhibits C, D, E and G, which were received into evidence.
 
            
 
                                      issues
 
            
 
                 The parties presented the following issues for 
 
            resolution:
 
            
 
                 1.  Whether claimant sustained an injury which arose 
 
            out of and in the course of his employment;
 
            
 
                 2.  Whether there is a causal relationship between the 
 
            alleged injury and the disability;
 
            
 
                 3.  Whether claimant is entitled to temporary total or 
 
            healing period benefits;
 
            
 
                 4.  Whether claimant is entitled to medical benefits 
 
            under Iowa Code section 85.27.
 
            
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 5.  Claimant's workers' compensation rate.
 
            
 
                                 findings of fact
 
            
 
                 Claimant was employed by defendant, Mason & 
 
            Hanger-Silas Mason Company, Inc., in 1987 as a production 
 
            operator.  His job duties involved work in the chamber-gauge 
 
            area, where he took munitions shells off of a conveyor, and 
 
            gauged them for measurements.   Each shell weighted 
 
            approximately 60-75 pounds.  Claimant estimated he lifted 
 
            approximately 400 shells a day.
 
            
 
                 On October 8, 1987, claimant's production level was 
 
            raised and his job required him to lift 550-600 shells 
 
            during his shift.  The next day, claimant experienced 
 
            stiffness and pain in his upper back and between his 
 
            shoulder blades.  He went to work, reported the injury, and 
 
            asked for medical attention.  Claimant was sent to the plant 
 
            hospital, and was examined by a plant physician, John 
 
            Phillips, M.D.  Dr. Phillips sent claimant back to work, but 
 
            restricted his activities with limitations of no bending, 
 
            twisting or lifting "anything heavier than a pencil."
 
            
 
                 Records from the employer indicate claimant was limited 
 
            to lifting up to 20 pounds, and limited bending and 
 
            twisting.  (Def. Ex. C, P. 5).
 
            
 
                 Claimant was given a return to work slip, and reported 
 
            to his supervisor, Randy Billips, who told claimant to 
 
            unload packaging crates off of a boxcar.  Claimant stated 
 
            that the crates were in bundles weighing 40 pounds, he could 
 
            only perform these duties for one hour, and he did not 
 
            finish working his shift.  He requested further medical 
 
            treatment.
 
            
 
                 Claimant's supervisor called the paramedics, and 
 
            escorted him to Burlington Medical Center. (BMC)  The 
 
            earliest records from the BMC emergency room, dated October 
 
            9, 1987, indicate that claimant was treated by Dr. Phillips, 
 
            and was diagnosed as having thoracic spine muscle strain.  
 
            X-rays taken revealed normal dorsal (thoracic) spine.  
 
            (Claimant's Exhibit 3).
 
            
 
                 Claimant returned to the plant hospital on October 12, 
 
            1987, and was again treated by Dr. Phillips.  He was taken 
 
            off work with lifting restrictions of ten pounds and no 
 
            twisting or bending until October 18, 1987.  The field 
 
            hospital medical staff place restrictions of no lifting of 
 
            more than ten pounds, and no twisting or bending.  The 
 
            restrictions were lifted on October 27, 1987, and claimant 
 
            was fully released to return to work.  (Def. Ex. C, P. 1).
 
            
 
                 Claimant again sought medical attention for upper back 
 
            strain on November 3, 1987, and has treated at the BMC 
 
            emergency room and the field hospital.  J. L. Saar, M.D., 
 
            made the following notation concerning the November visit:
 
            
 
                    On 11/3/87 @ 12:45 A.M., he was seen by EMT for 
 
                 what was recorded as "mild muscle strain upper 
 
                 back".  He insisted on going to BMC Emergency 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 Room.  He was sent back to Field Hospital and I 
 
                 saw him later that morning.  During our 
 
                 conversation and exam, he impressed me as having 
 
                 an uncooperative attitude, said the discomfort in 
 
                 his upper back "scared" him, he felt like he "was 
 
                 going to faint", and he was pretty sure there was 
 
                 "something serious wrong".
 
            
 
                    I spent considerable time in explanation and 
 
                 reassurance.  He was Rxed (treatment) and sent 
 
                 back to work with instructions to return daily for 
 
                 hot packs, reassurance and reassessment.  Two days 
 
                 later, he felt so much better he "didn't need the 
 
                 hot packs".  The following day admitted to feeling 
 
                 "pretty good" with perhaps occasional soreness 
 
                 around the muscles between shoulder blade and 
 
                 upper spine.  He had normal range of painless 
 
                 motion and no muscle spasm or induration.  He was 
 
                 kept on the restriction of no lifting over 20 lbs. 
 
                 and asked to return on 11/16/87.  He did not 
 
                 return.
 
            
 
                    Since he was well when last seen, and since he 
 
                 had not to my knowledge complained to any other 
 
                 Doctor about back trouble until after his 
 
                 termination on 5/10/88, it seems fairly reasonable 
 
                 to say that he was free of back trouble during 
 
                 that time.  Since his previous "trouble" was not 
 
                 of the type which is ordinarily considered to lead 
 
                 to recurrent episodes over a long period time, it 
 
                 is my opinion that any similar episodes would be 
 
                 considered new.
 
            
 
            (Defendants' Ex. C)
 
            
 
                 Claimant was assigned to a new job at this time, which 
 
            he described as "very light" physical exertion, but within 
 
            several months, was reassigned to the pack-out bay due to a 
 
            layoff of workers at the plant.  Pack-out bay duties 
 
            involved more strenuous physical requirements.  He continued 
 
            working in the pack-out bay until on May 4, 1988, when 
 
            claimant was suspended from work at the plant.  He was 
 
            dismissed for misconduct on May 10, 1988.
 
            
 
                 The evidence indicates that claimant sought medical 
 
            treatment on May 17, 1988 from Steve Rosebrock, M.D.  (Cl. 
 
            Ex. 2)  He was then referred to Robert Carleton, D.O., who 
 
            treated claimant from June 1988 to September 6, 1988.  
 
            Treatment from Dr. Carleton consisted of osteopathic 
 
            manipulative therapy, corticosteroids and anti-inflammatory 
 
            prescriptions.  Dr. Carleton posed the following opinion:
 
            
 
                    Mr. Rawson, in my opinion suffered from an 
 
                 acute back strain which became somewhat chronic, 
 
                 the result of an impossible task given to him by 
 
                 his employer.  He appears to have completely 
 
                 recovered.  I do not anticipate any further 
 
                 disability from this problem.  Mr. Rawson has been 
 
                 dismissed from my care.  I would place his 
 
                 disability dates from the time of injury in 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
                 October 1987 until he went back to work September 
 
                 6, 1988.  I wanted to be sure he had no 
 
                 recurrence, and that is the reason for the delay 
 
                 in this report.
 
            
 
            (Cl. Ex. 1)
 
            
 
                         analysis and conclusions of law
 
            
 
                 The first issue to be addressed is whether claimant 
 
            received an injury which arose out of and in the course of 
 
            his employment.
 
            
 
                 An employee is entitled to compensation for any and all 
 
            personal injuries which arise out of and in the course of 
 
            the employment.  Section 85.3(1).
 
            
 
                 The injury must both arise out of and be in the course 
 
            of the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 
 
            Iowa 402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 
 
            of the Iowa Report.  See also Sister Mary Benedict v. St. 
 
            Mary's Corp., 255 Iowa 847, 124 N.W.2d 548 (l963) and Hansen 
 
            v. State of Iowa, 249 Iowa 1147, 91 N.W.2d 555 (1958).
 
            
 
                 The words "out of" refer to the cause or source of the 
 
            injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63. 
 
            
 
                 The words "in the course of" refer to the time and 
 
            place and circumstances of the injury.  McClure v. Union 
 
            et al. Counties, 188 N.W.2d 283 (Iowa 1971); Crowe 246 Iowa 
 
            402, 68 N.W.2d 63.
 
            
 
                 "An injury occurs in the course of the employment when 
 
            it is within the period of employment at a place the 
 
            employee may reasonably be, and while he is doing his work 
 
            or something incidental to it."  Cedar Rapids Comm. Sch. 
 
            Dist. v. Cady, 278 N.W.2d 298 (Iowa 1979), McClure, 188 
 
            N.W.2d 283; Musselman v. Central Telephone Co., 261 Iowa 
 
            352, 154 N.W.2d 128 (1967). 
 
            
 
                 Claimant had been employed by defendant Mason & 
 
            Hanger-Silas Mason Company since 1986.  A review of the 
 
            evidence presented in the case shows that claimant worked as 
 
            a production operator, and on October 8, 1987 was required 
 
            to increase his production level.  The record indicates that 
 
            he sought medical treatment on October 9, 1987, with primary 
 
            complaints of pain and soreness between his left shoulder 
 
            blade and upper spine.  During the rest of October and early 
 
            November, claimant was periodically treated for a residual 
 
            muscle soreness.  On November 3, 1987, he was treated by Dr. 
 
            Saar, and was instructed to return daily for hot packs, 
 
            reassurance and reassessment.  The evidence shows that 
 
            claimant continued with this type of treatment for two days, 
 
            and at that time had normal range of painless motion and no 
 
            muscle spasm or enduration.  He was given a medical 
 
            restriction of no lifting over 20 pounds, and was to return 
 
            to Dr. Saar on November 16, 1987.  Claimant did not return.
 
            
 
                 Claimant was able to perform his job duties in full 
 
            capacity prior to October 8, 1987.  There is no evidence 
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
            which indicates claimant had any prior or preexisting 
 
            condition to his upper back, and it is therefore concluded 
 
            that claimant sustained an injury on October 8, 1987 which 
 
            arose out of and in the course of his employment.
 
            
 
                 The next issue for resolution is whether claimant's 
 
            injury is a cause of temporary disability during a period of 
 
            recovery.  
 
            
 
                 The claimant has the burden of proving by a 
 
            preponderance of the evidence that the injury of October 7, 
 
            1987 is causally related to the disability on which he now 
 
            bases his claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 
 
            N.W.2d 867 (1965).  Lindahl v. L. O. Boggs, 236 Iowa 296, 18 
 
            N.W.2d 607 (1945).  A possibility is insufficient; a 
 
            probability is necessary.  Burt v. John Deere Waterloo 
 
            Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955).  The 
 
            question of causal connection is essentially within the 
 
            domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
            Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). 
 
            
 
                 However, expert medical evidence must be considered 
 
            with all other evidence introduced bearing on the causal 
 
            connection.  Burt, 247 Iowa 691, 73 N.W.2d 732.  The opinion 
 
            of experts need not be couched in definite, positive or 
 
            unequivocal language.  Sondag v. Ferris Hardware, 220 N.W.2d 
 
            903 (Iowa 1974).  However, the expert opinion may be 
 
            accepted or rejected, in whole or in part, by the trier of 
 
            fact.  Id. at 907.  Further, the weight to be given to such 
 
            an opinion is for the finder of fact, and that may be 
 
            affected by the completeness of the premise given the expert 
 
            and other surrounding circumstances.  Bodish, 257 Iowa 516, 
 
            133 N.W.2d 867.  See also Musselman v. Central Telephone 
 
            Co., 261 Iowa 352, 154 N.W.2d 128 (1967).
 
            
 
                 As stated previously, there has been no evidence 
 
            presented which shows claimant had any prior injuries or 
 
            problems with his upper back.  Medical records provided by 
 
            both parties, and claimant's testimony are consistent, and 
 
            support a finding of causal connection between the injury 
 
            and claimant's disability.
 
            
 
                 The next issue presented is whether claimant is 
 
            entitled to weekly compensation for temporary total 
 
            disability.
 
            
 
                 Iowa Code section 85.33 provides the following 
 
            guidance:
 
            
 
                    Except as provided in subsection 2 of this 
 
                 section, the employer shall pay to an employee for 
 
                 injury producing temporary total disability weekly 
 
                 compensation benefits, as provided in section 
 
                 85.32, until the employee has returned to work or 
 
                 medically capable of returning to employment 
 
                 substantially similar to the employment in which 
 
                 the employee was engaged at the time of injury, 
 
                 whichever occurs first.
 
            
 
                 In the instant case, claimant was off work from October 
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            8, 1987 through October 18, 1987.  At that time, he was 
 
            restricted to ten pounds lifting, and no twisting or 
 
            bending.  He was placed in a new job, which adhered to the 
 
            restrictions.  After two or three weeks, he was put back 
 
            into production, and began performing heavy lifting duties.  
 
            Claimant returned the field hospital and the Burlington 
 
            Medical Center Emergency Room on November 3, 1987, and was 
 
            diagnosed mild muscle strain in the upper back.  He was 
 
            treated and sent back to work. 
 
            
 
                 Claimant did lose time from work as a result of his 
 
            injury.  Specifically, he was off work from October 8, 1987 
 
            through October 18, 1987.  Claimant is entitled to temporary 
 
            total disability benefits during this time.  Parties 
 
            stipulated to these dates.
 
            
 
                 It should be noted that claimant has advanced an 
 
            argument which would entitle him to additional temporary 
 
            total disability benefits form May 3, 1988 through September 
 
            6, 1988.  According to the evidence, claimant did not return 
 
            to the plant medical facility for any type of medical 
 
            treatment after November 5, 1987, and did not keep his 
 
            appointment on November 16, 1987.  There are several reasons 
 
            why the undersigned is not persuaded by claimant's 
 
            arguments, and is denied benefits from May 4, 1988 through 
 
            September 6, 1988.
 
            
 
                 On May 4, 1988, claimant was involved in an incident of 
 
            misconduct at work, and was subsequently terminated from his 
 
            employment on May 10, 1988.  It has been shown that claimant 
 
            threatened and harassed the employer, with the motivation of 
 
            being rehired.  It was only after his attempts to be hired 
 
            back with the employer did claimant seek medical attention 
 
            for the upper back.  (See, Defendant's Ex. D, Pages 12-13).
 
            
 
                 The next issue to be resolved is whether claimant is 
 
            entitled to medical benefits under Iowa Code section 85.27.
 
            
 
                 Iowa Code section 85.27 provides in pertinent part:
 
            
 
                    The employer, for all injuries compensable 
 
                 under this chapter or chapter 85A, shall furnish 
 
                 reasonable surgical, medical, dental, osteopathic, 
 
                 chiropractic, podiatric, physical rehabilitation, 
 
                 nursing, ambulance and hospital services and 
 
                 supplies therefor and shall allow reasonably 
 
                 necessary transportation expenses incurred for 
 
                 such services.
 
            
 
                 Defendants are responsible for all medical expenses 
 
            incurred by claimant from October 8, 1987 through November 
 
            16, 1987.  The medical expenses incurred by claimant after 
 
            November 16, 1987 are not considered necessary for treatment 
 
            of his work related injury.
 
            
 
                 The final issue to be resolved is claimant's workers' 
 
            compensation rate.
 
            
 
                 The parties stipulated to claimant's gross weekly 
 
            earnings: $353.20.  They also stipulated to the number of 
 

 
            
 
            Page   7
 
            
 
            
 
            
 
            
 
            exemptions to which claimant is entitled: three.  Claimant's 
 
            workers' compensation rate is $228.96.
 
            
 
                                      order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 Defendants shall pay unto claimant temporary total 
 
            disability benefits from October 12, 1987 through October 
 
            17, 1987 at the rate of two hundred twenty-eight and 96/100 
 
            dollars ($228.96).
 
            
 
                 Defendants shall pay claimant's medical expenses 
 
            incurred from October 8, 1987 through November 16, 1987.
 
            
 
                 Defendants shall receive credit for all temporary total 
 
            disability benefits previously paid as well as credit for 
 
            medical benefits paid, pursuant to Iowa Code section 
 
            85.38(2).
 
            
 
                 Claimant takes nothing further from these proceedings.
 
            
 
                 Costs of this action are assessed against the claimant 
 
            in accordance with rule 343 IAC 4.33.
 
            
 
                 Signed and filed this ____ day of February, 1991.
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                          PATRICIA J. LANTZ
 
                                          DEPUTY INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr William Bauer
 
            Attorney at Law
 
            100 Valley Street
 
            PO Box 517
 
            Burlington Iowa 52601
 
            
 
            Ms Vicki L Seeck
 
            Attorney at Law
 
            600 Union Arcade Bldg
 
            Davenport Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                      1801
 
                      Filed February 7, 1991
 
                      PATRICIA J. LANTZ
 
            before the iowa industrial commissioner
 
            ____________________________________________________________
 
                      :
 
            KEITH B. RAWSON,    :
 
                      :
 
                 Claimant, :
 
                      :
 
            vs.       :
 
                      :      File No. 867208
 
            MASON & HANGER :
 
            SILAS MASON COMPANY,     :    A R B I T R A T I O N
 
                      :
 
                 Employer, :      D E C I S I O N
 
                      :
 
            and       :
 
                      :
 
            THE TRAVELERS INSURANCE  :
 
            COMPANY,  :
 
                      :
 
                 Insurance Carrier,  :
 
                 Defendants.    :
 
            ___________________________________________________________
 
            
 
            1801
 
            Claimant failed to show he was entitled to additional 
 
            temporary total benefits.  Claimant sustained upper back 
 
            muscle strain.  he was off work for a period of time and was 
 
            paid benefits.
 
            Claiamnt returned to work, and did not seek additional 
 
            medical treatment for more than 7 months, and was fired for 
 
            insubordinaiton prior to seeking additional benefits.
 
            Benefits denied.